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Abstract:
The goal of this Report is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. To do this the Report assembles, aggregates, and analyzes information about forty of the largest recent successful private antitrust cases. This information includes, inter alia, the amount of money each action recovered, what proportion of the money was recovered from foreign entities, whether the private litigation was preceded by government action, the attorneys' fees awarded to plaintiffs' counsel, on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two). The article also compares the amounts collected from all antitrust violations together, and also from cases that also resulted in criminal penalties, to the total of all criminal antitrust fines imposed during the same period by the U.S. Department of Justice. This information is then used to help formulate policy conclusions about the desirability and efficacy of private enforcement of the antitrust laws.

antitrust law, private enforcement, empirical research

Abstract:
The conventional wisdom in the antitrust community is that the purpose of the antitrust laws is to promote economic efficiency. That view is incorrect. As this article shows, the fundamental goal of antitrust law is to protect consumers.

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that deprives them of the benefits of competition. When conduct presents a conflict between protecting consumers and improving the efficiency of the economy (e.g., a merger that raises prices but reduces costs), no court in recent years has chosen efficiency over consumer protection.

The only exception is the law's determination to protect small sellers from price fixing and other anticompetitive behavior by buyers. This limited concern, however, is just the mirror image of Congress' desire to protect consumers from exploitation. In both buy-side and sell-side cases, the overarching goal is the same - preventing firms that have unfairly acquired power from imposing noncompetitive prices or other terms on their trading partners, thereby transferring wealth from the trading partners to themselves. This conclusion supports a more aggressive approach to many areas of antitrust enforcement, including mergers and joint ventures.

Abstract:
This chapter examines how high cartels raise prices on average and what this should mean for the current criminal fine levels in the U.S. Sentencing Guidelines. We utilize two distinct data sets (economic and other studies, and verdicts in final cartel cases) and find that cartels have caused average overcharges in the range of 31 to 49 percent and median overcharges in the range of 22 to 25 percent of affected commerce. We conclude that the current Sentencing Commission presumption that cartels overcharge on average by 10 percent is much too low, and the current levels of cartel penalties should be increased significantly.

Abstract:
This Article examines whether the current penalties in the United States Sentencing Guidelines are set at the appropriate levels to deter illegal price fixing cartels optimally. The authors analyze two data sets to determine how high on average cartels raise prices. The first consists of every published scholarly economic study of the effects of cartels on prices in individual cases. The second consists of every final verdict in a U.S. antitrust case in which a neutral finder of fact reported collusive overcharges. They report average overcharges of 49% and 31% for the two data sets, and median overcharges of 25% and 22%. They also report separate results for domestic cartels, international cartels, more recent cartels, and bid‑rigging.

The authors conclude that the current Sentencing Commission presumption that cartels overcharge on average by 10% is much too low, and that principles of optimal deterrence indicate that current levels of cartel penalties should be increased significantly. The Sentencing Commission should consider raising the presumption to 15% for domestic cartels and 25% for international cartels. Alternatively, if the policymakers decide this distinction is unwise, a 20% overall presumption would be appropriate. This is a conservative and modest proposal in light of this article's results.

antitrust, cartel, deterrence, overcharges, price fixing, fines

Abstract:
Our survey identified about 200 serious social-science studies of cartels which contained 674 observations of average overcharges. Our primary finding is that the median cartel overcharge for all types of cartels over all time periods has been 25%; 17-19% for domestic cartels, and 30-33% for international cartels. Thus, in general, international cartels have been about 75% more effective in raising prices than domestic cartels. Since the United States has had, historically, by far the toughest system of anti-cartel sanctions, this could imply that these sanctions have been having significant effects.

In our social-science sample, 79% of the overcharges were higher than the 10% presumption contained in the US Sentencing Guidelines; 60% were above 20%. Perhaps surprisingly, bid rigging was no more injurious than other forms of collusion. If anything, our data suggests that bid rigging might be about one-fifth less injurious. These results suggest that the USSC should amend its Guidelines, which currently treat bid rigging more harshly than other forms of collusion.

The results of the survey of final verdicts in decided U.S. collusion cases, only three of which were international cartels, show an average median overcharge of 21.6% and an average mean overcharge of 30.0%. Thus, the 25 decisions produce average overcharges that are quite comparable to the results of the much larger set of economic estimates. All but five of the reported decisions found that the cartel had raised prices by more than the USSC's 10% benchmark.

For these reasons, if the U.S. Sentencing Commission decides to re-examine whether 10% is the right overcharge presumption, it should consider raising the presumption to 15% for domestic cartels and 25% for international cartels. This is a conservative and modest proposal in light of this article's demonstration that cartels typically generate at least two or three times the harms presumed by the current Sentencing Guidelines.

cartel, antitrust, sanctions, cartel fine, criminal fine, deterrence

Abstract:
This Paper presents information about forty of the largest recent successful private antitrust cases. To do this, the paper gathers information about each case, including, inter alia, (1) the amount of money each action recovered for the victims of each alleged antitrust violation, (2) what proportion of the money was recovered from foreign entities, (3) whether government action preceded the private litigation, (4) the attorney's fees awarded to plaintiffs' counsel, (5) on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and (6) the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two).

A separate Study, forthcoming in the University of San Francisco Law Review (available at: http://ssrn.com/abstract=1090661), aggregates and analyzes this information. That Study also compares the total monetary amounts paid in all forty cases, as well as from the subset of the forty cases that also resulted in criminal penalties, to the total criminal antitrust fines imposed during the same period by the United States Department of Justice ("DOJ"), and also to the deterrence effects of the prison sentences that resulted from DOJ prosecutions during this period. The overall goal of the project is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws serves its intended purposes and is in the public interest.

The results of the Study show that private antitrust enforcement helps the economy in many ways. It very significantly compensates victims of illegal corporate behavior, and is almost always the only way they can receive redress. Private enforcement often prevents foreign corporations from keeping the many billions of dollars they illegally obtain from individual and corporate purchasers in the United States. The Study also shows that almost half of the underlying violations were first uncovered by private attorneys, not government enforcers, and that litigation in many other cases had a mixed public/private origin. The evidence also shows that private litigation probably does more to deter antitrust violations than all the fines and incarceration imposed as a result of criminal enforcement by the U.S. Department of Justice. This is one of the most surprising results from our Study. We do not know of any past study that has documented that private enforcement has such a significant deterrence effect as compared to DOJ criminal enforcement.

antitrust law, private enforcement, empirical research

Abstract:
Privacy and antitrust? Isn't antitrust only supposed to be concerned with price? Well, no. Antitrust is actually about consumer choice, and price is only one type of choice. The ultimate purpose of the antitrust laws is to help ensure that the free market will bring to consumers everything they want from competition. This starts with competitive prices, of course, but consumers also want an optimal level of variety, innovation, quality, and other forms of non-price competition. Including, in the Google-Doubleclick and Microsoft-Yahoo transactions, privacy protection.

antitrust, mergers, privacy, consumer protection

Abstract:
The purpose of this paper is to examine whether the current cartel fine levels of the European Union and the United States are at the optimal levels. The article does this by collecting and analyzing the available information concerning the size of the overcharges caused by hard core pricing fixing, bid rigging, and market allocation agreements. Data sets for United States cartels are assembled and examined (these cartels overcharged an average of 18% to 37%, depending upon the data set and methodology employed in the analysis and whether mean or median figures are used). Separate data sets for European cartels also are analyzed (which show overcharges in the 28% to 54% range). The article similarly examines cartels that had effects solely within a single European country (which showed significantly lower overcharges, averaging in the 16% to 48% range).

In light of the antitrust objective of optimal deterrence, this article compares the current fine levels in both the European Union and the United States to the amounts gained on average by cartels as a result of their illegal activity. The results show that on average these cartel overcharges are significantly larger than the criminal fines of either the European Union or the United States. This means that the United States and - especially - the European Union should increase their penalties for hard core collusion substantially.

cartel, antitrust, optimal deterrence, United States, European Union, cartel fine, criminal fine

Abstract:
The current paradigms of antitrust law - price and efficiency - do not work well enough. They were an immense improvement over their predecessors, and they have served the field competently for a generation, producing reasonably accurate results in most circumstances. Accu mulated experience has also revealed their shortcomings, however. They are hard to fully understand and are not particularly transparent in their application. Moreover, in a disturbingly large number of circumstances they are unable to handle the important issue of non-price competition.

In this article we suggest replacing the older paradigms with the somewhat broader approach of "consumer choice." The choice framework has several advantages. It takes full account of all the things that are actually important to consumers- price, of course, but also variety, innovation, quality, and other forms of non-price competition. It is also far more transparent, which is an important administrative virtue even where, as in the great majority of cases, it will reach the same result. And in some important real-world situations it will lead to better substantive outcomes. There are a number of variety-valuing industries and circumstances that can be assessed cor rectly only by including an effective analysis of nonprice factors. We identify several of those in the article.

antitrust, consumer choice, competition, price

Abstract:
This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two component parts of an overarching unity: effective consumer choice (also called consumer sovereignty).

Consumer choice only is effective when two fundamental conditions are present. There must be a range of consumer options made possible through competition, and consumers must be able to choose effectively mong these options. The antitrust laws are intended to ensure that the marketplace remains competitive, unimpaired by practices such as price fixing or anticompetitive mergers. The consumer protection laws are then intended to ensure that consumers can choose effectively from among those options, with their critical faculties unimpaired by such violations as deception or the withholding of material information. Protection at both levels is needed to ensure that a market economy can continue to operate effectively.

Legal protection of this sort is required only when the free market is not working properly. This article will demonstrate that antitrust violations stem from market failures in the general marketplace external to consumers, whereas consumer protection violations flow from market failures that take place, in a sense, "inside the consumer's heads."

This approach provides a coherent theoretical platform from which antitrust and consumer protection law may be better understood and applied. It also has significant practical consequences, many of which are explored in this article. This article is a companion piece to "Using the Consumer Choice to Antitrust Law," 74 Antitrust Law Journal 175 (2007), which can be found at http://ssrn.com/abstract=1121459.

consumer protection, consumer, antitrust, antitrust goals, consumer choice, efficiency

Abstract:
Chicago School antitrust policy rests on the premise that the purpose of the antitrust laws is to promote economic efficiency. That foundation is flawed. The fundamental goal of antitrust law is to protect consumers.

This essay defines the relevant economic concepts, summarizes the legislative histories, and analyzes recent case law. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that deprives them of the benefits of competition and transfers their wealth to firms with market power. When conduct presents a conflict between the welfare of consumers and total welfare (e.g., a merger that raises prices but reduces costs), no court in recent years has chosen economic efficiency over consumer protection. For a more extensive discussion of these issues, see The Fundamental Goal of Antitrust: Protecting Consumers, Not Increasing Efficiency, 84 Notre Dame L. Rev. 191 (2008), http://ssrn.com/abstract=1113927

antitrust, monopoly, Chicago School, efficiency, consumers, wealth transfers, competition, consumer welfare

Abstract:
This short piece explains how the first unit discounts or rebates allegedly given by Intel on their X86 chips could harm competition, innovation, and PC purchasers in this crucial $33 billion/year market. For these reasons, their discounts or rebates could violate European Competition law and U.S. Antitrust law.

antittrust, competition law, EU, European Union, Intel, monopolization, discounts, rebates

Abstract:
This article seeks an answer to a question that should be well settled: for purposes of antitrust analysis, what is 'market power' and/or 'monopoly power'? The question should be well settled because antitrust law requires proof of actual or likely market power or monopoly power to establish most types of antitrust violations.

Examination of key antitrust law opinions, however, shows that courts define 'market power' and 'monopoly power' in ways that are both vague and inconsistent. We conclude that the present level of confusion is unnecessary and results from two different but related errors:

(1) the belief or suspicion that market power and monopoly power are two different concepts, when they are in fact, for antitrust purposes, qualitatively identical. We argue that attempting to distinguish between market power and monopoly power creates a false dichotomy; and

(2) the failure to recognize that anticompetitive economic power can manifest itself in two distinct ways, and these differences have significant legal and policy implications. The true distinction is between anticompetitive economic power that is exercised by restricting one's own output, and such power exercised by restricting the output of one's rivals. Identifying this fundamental distinction and discarding the false one can help to clarify a number of troublesome antitrust issues.

The body of this article describes these conclusions, and the bases for them, in some detail. The appendix presents a shorter, more technical description of the principal argument. Readers already familiar with the main body of antitrust law and conversant with antitrust economics may wish to begin by reading the appendix.

antitrust,market power,monopoly power,competition law,

Abstract:
This articles discusses Intel's claim that the EU's fine against it for a competition law violation was so large that its human rights' were violated.

Antitrust, competition law, fines, Intel, EU, monopolization, human rights

Abstract:
The conventional wisdom is that current antitrust damage levels are too high, lead to overdeterrence, and should be cut back. Although most agree that threefold damages are fine for cartels, the combination of treble damages to direct purchasers and another treble damages to indirect purchasers typically is denounced as duplicative, a mess, or the equivalent of the use of cluster bombs on defendants.

This article, however, demonstrates the opposite. It shows that, if the current antitrust damage levels are examined carefully, they are the equivalent of approximately single damages, not treble damages. Moreover, defendants' theoretical nightmare scenarios of sixfold damages have never occurred in the real world. Yet, antitrust damages should be significantly higher than single damages to deter antitrust violations optimally. For these reasons, antitrust damage levels should be raised significantly. Prejudgment interest would be a good way to do this.

antitrust, damages, deterrence, compensation, treble damages, private enforcement, antitrust damages

Abstract:
There are two very different sources of market power in antitrust cases. The first is traditional market sharebased market power. Market power in antitrust cases also can come from deception, significantly imperfect or asymmetric information, or other types of market failures that usually are associated with consumer protection violations. When these consumer protection market failures are present in antitrust cases, market power can arise even if no firm has a market share large enough for a finding of traditional market share based market power. However, instead of traditional end-use consumers being harmed, the direct victims are businesses. The consumer protection type of market power has been a small part of the antitrust world for decades. Nevertheless, this paper urges that it play an even larger role in the day-to-day world of antitrust. This paper also discusses some of the implications that could arise if we grant this source of market power the attention it deserves. In addition to having an effect on our beliefs as to when market power may be present, it also could have important effects on such related antitrust areas as market definition and entry analysis.

antitrust, market power, monopoly power, market failure, imperfect information, entry, market definition

Abstract:
This paper makes two points. First, Section 5 of the FTC Act, properly construed, is indeed significantly broader and more encompassing than the Sherman Act or Clayton Act. Section 5 violations include incipient violations of the other antitrust laws, and also violations of their policy or spirit.

Second, the best - and probably the only - way to interpret Section 5 in an expansive manner is to do so in a way that also is relatively definite, predictable, principled and clearly bounded. This best can be done if Section 5 is articulated using the consumer choice framework. Without the discipline and constraints provided by this framework, the FTC Act risks becoming unduly standardless. Unless the Commission uses the choice framework, any attempt to construe Section 5 that goes beyond the other antitrust laws risks being viewed as giving undue discretion to the Commission, and for this reason probably will not be permitted by reviewing courts.

The paper also presents three illustrations of how this could make a beneficial difference in practice: situations similar to the N Data case, invitations to collude, and incipient tying and exclusive dealing violations.

Antitrust, Federal Trade Commission, trade regulation, collusion, tying, exclusive dealing, consumer choice

Abstract:
his Article will show that antitrust violations do not actually give rise to "treble" damages. When viewed correctly, antitrust damages awards are approximately equal to, or are in fact less than, the actual damages caused by antitrust violations.

The article demonstrates this by analyzing the relatively quantifiable harms from antitrust violations, modeling the issues under both deterrence and compensation frameworks. It calculates rough estimates of those factors that affect the magnitude of the antitrust damages multiplier actually awarded. These adjustments to the "treble" damages multiplier arise from: (1) the lack of prejudgment interest; (2) the effects of the statute of limitations; (3) plaintiffs' attorneys' fees and costs; (4) other costs to plaintiffs pursuing cases; (5) costs to the judicial system in handling antitrust cases; (6) "umbrella" effects of market power; (7) allocative inefficiency effects of market power; and (8) tax effects.

The article then combines these adjustments using both deterrence and compensation frameworks. It compares the sum of the damages caused by antitrust violations to the typical amounts awarded to successful plaintiffs to determine, on average, the true effective ratio of recovery to damages. This analysis show that when all the appropriate adjustments are considered together, awarded damages are, at most, probably at the single level. From either a deterrence or compensation perspective, the Article concludes by discussing some implications of this finding in light of the consensus that antitrust damages should be substantially higher than singlefold to account for detection problems, proof problems, and risk aversion. For these reasons the Article urges that antitrust damages levels be raised by, for example, awarding prejudgment interest.

Antitriust, Damages, treble damages, deterrence, overdeterrence, private enforcement, antitrust damages

Abstract:
This article examines five common beliefs about antitrust damages and shows they all are untrue.

Myth #1. Antitrust violations give rise to treble damages.

Myth #2. There is "duplication" of antitrust damages because many defendants pay six-fold or more damages.

Myth #3. Courts should go easy on defendants when formulating liability rules or calculating overcharges because the awarded damages from a finding of an antitrust violation are so severe.

Myth #4. The size of the harms caused by antitrust violations, even by such "hardcore" violations as naked cartels, is relatively modest, and criminal penalties resulting from violations are out of proportion to these harms. This causes overdeterrence.

Myth #5. Even though treble damages should be maintained for "hardcore" violations, they should be reduced for some violations, such as rule of reason violations.

The final version of this article appeared as, "Five Myths About Antitrust Damages", 40 U.S.F.L. Rev 651 (2006).

antitrust, damages, antitrust damages, deterrence, overdeterrence, compensation

Abstract:
Illinois Brick held that only direct purchasers successfully can sue for damages under federal antitrust law. Since this left most true victims of antitrust violations without an effective remedy, most states enacted Illinois Brick Repealers (IBRs), to give indirect purchasers the right to sue for damages when firms violate analogous state laws.

Although many benefits would arise if national legislation overturned Illinois Brick, to date every attempt to achieve a comprehensive federal solution has failed. Because this thirty year stalemate is almost certain to continue, this article instead focused on reform at the state level, where reform is much more achievable.

This article presents a large number of IBR options that address the spectrum of a state's potential needs, together with commentary giving the major effects, advantages and disadvantages of each. As its Conclusion, this article suggests its own Model State Illinois Brick Repealer legislation.

antitrust, Illinois Brick, damages, price fixing, cartel, consumers, indirect purchasers, direct purchasers, state antitrust

Abstract:
This short piece gives an overview of antitrust actions filed around the world against Intel for allegedly undertaking anticompetitive actions in the market for X 86 PC chips.

antitrust, Intel, competition, computer chips, computer industry

Abstract:
Collusion can profitably be classified into three distinct types. In our classification, "Type I" collusion is the familiar direct agreement among colluding firms (a cartel) to raise prices or, equivalently, restrict output. Alternatively, firms can collude to disadvantage rivals in ways that causes those rivals to cut output. We term this "Type II" collusion. Its indirect effect is an increase in market prices.

A number of important collusion cases neither direct manipulation of prices or output, nor direct attacks on rivals. Examples include Supreme Court cases such as National Society of Professional Engineers v. US, Bates v. State Bar of Arizona, and FTC v. Indiana Federation of Dentists. In each of these cases, cartel members set prices and output independently. Their collusion shaped the rules under which the independent decisions of the colluding firms were made. Collusion permitted the cartel members to insolate themselves from each another, at least partially. Their newfound isolation provided benefits similar to those attainable from market power acquired in a more traditional fashion. By increasing the insulation of cartel members, each achieved the power and independence to raise its own price-the colluding firms competed on price, but their competition was rendered less vigorous than by collusion over rules.

Archetypal examples of this type of collusion include softening competition by limiting information available to consumers through direct restrictions on advertising. In this Article we explore a number of examples of previously unexplained or uncategorizable cartels that can be explained by this construct. We show that, together, they form a third general category of anticompetitive behavior that we term "Type III" collusion. With considerable enforcement activity directed at collusion of Types I and II, we believe that Type III collusion will prove increasing attractive to firms and, accordingly, a growing source of social welfare loss from collusion.

Antitrust,Collusion, cartel, price fixing, anticompetitive, competition, joint venture

Abstract:
This article assesses some of the benefits of private enforcement of the United States antitrust laws by analyzing forty large recent, successful private cases. It should help in assessing the desirability and efficacy of private enforcement - information that may prove useful to jurisdictions contemplating a private right of action for competition cases.

antitrust, competition, competition law, competition law enforcement, private antitrust enforcement, private rights of action, private competition litigation

Abstract:
The May 13, 2009 decision by the European Commission ('EC') holding that Intel violated Article 82 of the Treaty of Rome and should be fined a record amount and prohibited from engaging in certain conduct, set off a predictable four part chorus of denunciations: 1. Intel did nothing wrong and was just competing hard; 2. Intel’s discounts were good for consumers; 3. The entire matter is just another example of Europeans protecting their own against a more efficient U. S. company; and 4. Even if Intel did engage in anticompetitive activity, the fine was much too large. These assertions will be addressed in turn.

antitrust, Intel, European Commission, competition policy, EU, anticompetitive, Treaty of Rome, fines, American Antitrust Institute

Abstract:
The purpose of this commentary is to analyze some of the empirical issues that help lay the foundation for the policy conclusions in the excellent and provocative article by Professor Herbert Hovenkamp, Discounts and Exclusion.This Article argues that, because there is no support for these empirical assertions, policymakers should reject the policy suggestions that follow. Finally,some policy alternatives are proposed for consideration by the antitrust community.

consumer protection, price discrimination, predatory pricing, antitrust, discount, discounting, predation, monopolization, rebate

Abstract:
When should the government challenge a merger that might increase market power but also generate efficiency gains? The dominant belief has been that the government and courts should evaluate these mergers solely in terms of economic efficiency. Congress, however, wanted the courts to stop any merger significantly likely to raise prices. Substantially likely efficiency gains should therefore affect the legality of mergers to the extent that they are likely to prevent price increases. This standard is more strict than the economic efficiency criterion, because the latter would permit mergers substantially likely to lead to higher prices, if sufficient efficiency gains were substantially likely.

The authors analyze the competing price effects of market power increases and efficiency gains in the most relevant context: significant mergers in concentrated markets - oligopoly. They derive four general oligopoly models and evaluate them over all reasonable ranges for their underlying parameters. This methodology avoids biases due to overly restrictive assumptions.

By using the Merger Guideline standards and data from mergers that the Federal Trade Commission closely examined, the authors analyze empirically relevant tradeoffs between market power increases and efficiency gains. They find that decreases in marginal costs of 0 to 9% could be necessary to prevent price gains from mergers typical of those the government regularly evaluates. Cost savings in the upper portions of this range are far larger than those that previous authors have suggested would be necessary to compensate for efficiency losses from most mergers. They are also far greater than efficiency gains that one could realistically predict from virtually any merger. Moreover, if a merger significantly increased the probability of collusion, the required cost savings would be even greater.

The authors' models and a large number of practical considerations suggest that implicit consideration of efficiency gains, through adjustment of the standards for horizontal mergers, would be better than an explicit case-by-case efficiency defense.

Antitrust,Price Effects, Mergers,Horizontal Mergers

Abstract:
The conventional antitrust wisdom is that buyer side market power or monopsony is so unusual and so rarely anticompetitive that it should not merit more than a scholarly afterthought. Moreover, these brief mentions typically say it is essentially the mirror image of seller power or that, while seller-side power is suspect since it leads to higher consumer prices, buyer-side power is usually benign, because the public should not care which layer of a distribution channel gets any potential savings that can arise. This short article discusses how buyer power can be anticompetitive. It also discusses how buyer power or monopsony power is not the reciprocal of seller power or monopoly power, and summarizes an American Antitrust Institute conference on the subject.

antitrust, buyer power, monopsony, monopoly, consumer harm

Abstract:
This short piece considers whether the EU antitrust action against Intel constitutes an example of European regulators attacking a successful US company in order to protect a European competitor, or whether it instead is an example of legitimate law enforcement.

antitrust, monopolization, Intel, protectionism, high tech, computers, European antitrust

Abstract:
This article is from a symposium, "Five Approaches to Legal Reasoning in the Classroom: Contrasting Perspectives on O'Brien v. Cunard S.S. Co. Ltd.," 57 Missouri L. Rev. 345 (1992). The symposium contains five articles that analyze this case from, respectively, traditionalist, Law & Economics, Critical Legal Studies, Feminist, and Critical Race Theories perspectives.

This article analyzes the O'Brien case from a Law & Economics perspective. It does so in a manner suitable for presentation in a Torts class or a Law & Economics class. It explains the basic terminology and approach. It analyzes the economics underlying the vaccination requirement, whether Cunard should be liable for its physician's negligence, and the informed consent/battery issues. Its analysis includes the possible effects of various Tort decision rules on behavior modification, and it also analyzes the distributive effects of these rules on all parties involved. It does this for both the short term and the long term. It undertakes this analysis with the goal of introducing the Law & Economics approach to legal reasoning to law students.

Cunard Steamship Co., Torts education, Law & Economics education, Torts class, Law & Economics class, legal education, legal reasoning, approaches to legal reasoning

Abstract:
Many instances of anticompetitive collusion are designed not to affect prices and output directly, but rather to shape the rules under which competition takes place. They help to cushion competitors from hard competition through such "rules" as restraints on advertising, sham ethical codes, or bans on discounts, coupons, "free" services, or extended hours of operation. Instead of collusion directly over outcomes, firms attuned to the strategic impact of their activities often agree on ways in which to shape their environments in order to soften competition and to insulate themselves from hard competition in ways that will lead to higher prices. While not every agreement among rivals is anticompetitive, every agreement that is anticompetitive falls within one of three categories. Type I collusion encompasses traditional agreements to affect price and/or output directly or fairly directly. Type II collusion consists of agreements to disadvantage rivals. And Type III "rule fixing" collusion gathers together and explains the remaining types of agreements.

antitrust, collusion, cartels, competition

Abstract:
This article briefly describes the revolutionary potential of the Supreme Court's Kodak decision. It discusses the dramatic changes in antitrust that would occur if the field took concepts such as imperfect information, lock-in effects, strategic behavior, and other post-Chicago ideas seriously.

Among the effects of this decision could be:

(1) Imperfect information could substitute for traditional market share-based market power and reveal that a market that structurally appeared competitive in fact was behaving anticompetitively. Market share-based safe harbors are more likely to be inappropriate.

(2) This imperfect information-based market power also can lead to relatively direct harm to consumers by allowing price increases or by distorting consumers' choices among differentiated products.

(3) Imperfect information also can create more narrowly defined relevant markets because it can effectively prevent customers from turning to certain potential substitutes. They may not know of an option's existence or, more likely, that it is a cost/effective option. A finding of narrower markets usually will have the effect of making it more likely that a firm will be found to have market power.

(4) Businesses, like individual consumers, can make information-based mistakes that can cause them to be exploited. Consumer protection law's assumptions about individuals' capabilities, vulnerabilities, and needs can apply to businesses as well.

(5) Information problems can be so great that they can affect the competition in entire markets.

A broad interpretation of Kodak could shake the antitrust world. In addition to tying analysis, at least four areas of antitrust could be profoundly affected, including vertical restraints analysis, franchiser/franchisee relationships, predatory pricing analysis, and Robinson-Patman Act and other antitrust situations involving price discrimination, such as bundled and single product discounting. This article shows that these topics all require considerable additional analysis by the antitrust community.

antitrust, imperfect information, vertical restraints, predatory pricing, frinchiser, franchisee, price discrimination

Abstract:
This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two components of a single overarching unity. That overarching unity is consumer choice. Antitrust and consumer protection law share a common purpose in that both are intended to facilitate the exercise of consumer sovereignty or effective consumer choice. Such consumer choice exists when two fundamental conditions are present: (1) there must be a range of consumer options made possible through competition; and (2) consumers must be able to select freely among these options.

antitrust, consumer protection, Federal Trade Commission, market failure, competition

Abstract:
Should unions and corporations be treated identically under the antitrust laws? This article explores this provocative question by examining whether union mergers should be subject to the antitrust laws. Currently unions and corporations are treated very differently. Large corporate mergers are blocked if their effect "may be substantially to lessen competition, or to tend to create a monopoly". They are permitted if they are likely to be benign, procompetitive, or proconsumer.

Collective bargaining, by contrast, enjoys a broad exemption from the antitrust laws. If they follow appropriate procedures, unions - even unions that, when taken together, cover all workers within a given industry - are permitted to merge or to coordinate their activity. There is no review of these mergers or of this coordinated activity to determine whether monopoly power, cartel-type behavior, or other anticompetitive or anticonsumer activity will result.

This Article asks whether mergers or joint conduct between labor unions should be examined under a standard similar to that used to scrutinize corporate activity. This piece outlines an alternative proposal that would allow workers within individual companies to form a union or otherwise coordinate their bargaining, but then subjects all proposed mergers or other alliances of these units to the provisions of the antitrust laws. We take Congress' concerns in the area as a given and demonstrate that Congress could substantially have reached its primary goals in a better way.

An approached that treated union activity identically to corporate activity might very well reduce the anticompetitive potential of unions without ignificantly sacrificing their protective and efficiency-enhancing aspects. This Article focuses upon some of the implications and practical consequences that could arise from this alternative policy.

Antitrust, Unions, Mergers, Consumers, Consumer Protection

Abstract:
This article critically analyzes the current system of United States merger enforcement, under which both federal and State antitrust enforcers scrutinizes and potentially can challenge any merger that affects interstate commerce. This article develops and proposes an alternative, a voluntary division of responsibility patterned after the European Union's approach. Under this alternative federal enforcers normally would defer to State enforcers for certain specified mergers, and State enforcers normally would defer to federal enforcers for other specified mergers.

merger, antitrust harmonization, state antitrust, state merger enforcement, European Union merger enforcement, federal/state cooperation

Abstract:
This article explores when efforts by firms to restrict reverse engineering of their software, and corresponding agreements by other firms not to reverse engineer this software, could raise significant antitrust issues.

This article provides an overview of how the laws prohibiting certain acts of monopolization, attempted monopolization, refusals to deal, and tying might apply to restrictions and agreements concerning the reverse engineering of computer software. As a necessary predicate to this analysis, the article first briefly describes the contours of intellectual property protection for software, including the fair use and the copyright misuse doctrines.

monopolization, refusals to deal, tying, intellectual property, fair use doctrine, copyright misuse doctrine

Abstract:
The mission of the antitrust laws need to be clarified, and this article asserts that the best way to do this is to interpret and enforce these laws in terms of consumer choice. This reformulation is necessary due to uncertainty and instability that exists in the field. This article will 1. define the consumer choice approach to antitrust or competition law and show how it differs from other approaches; 2. show that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice; 3. show that the antitrust case law embodies a concern for optimal levels of consumer choice; 4. present evidence of the new paradigm: United States v. Microsoft; 5. argue that non-price competition should become a higher priority for antitrust enforcement; 5. Discuss consumer choice and the media.

antitrust competition law, consumers, consumer choice, non-price competition

Abstract:
This article analyzes the Canadian Superior Propane decision, apparently the first merger decision in world history to consider explicitly what to do when a merger was predicted to lead to both higher consumer prices and to net efficiencies. The article advocates analyzing the merger under a "price to consumers" or "consumer welfare" standard, rather than a total efficiency standard, and advocates that the enforcers and the courts block such mergers.

mergers, consumer welfare, total welfare, Canadian antitrust, price standard, cost savings, efficiency, efficiency standard

Abstract:
This article traces the evolution of federal merger policy. It documents how merger enforcement originally was largely based upon very strong structural presumptions. These presumptions gradually eroded and other factors became more and more important in enforcement decisions. Today meger enforcement essentially consists of structural safe harbors and a full rule of reason analysis for any merger not within these safe harbors.

mergers, merger policy, antitrust, rule of reason, safe harbors

Abstract:
The merger incipiency doctrine is virtually ignored in the courts today. This article argues that it should be resurrected, and it also explores the ways that effectuating Congressional intent in the area would reinvigorate merger policy.

The article documents how the legislative history of the antimerger statutes shows that Congress intended mergers to be evaluated under an incipiency approach, and explores the possible meanings of this idea. It then shows that this is a strong basis for reviving significantly stricter or more prophylactic merger enforcement.

The article shows how there are aspects of the doctrine that could be revived without returning to the earlier misguided Von's Grocery approach to the issue. It shows, for example, how the concept could in part be resurrected if merger enforcement's primary focus returned to its intellectual foundation: a concern with consumer choice. During many permissive periods of merger enforcement the sole goal of merger enforcement policy was increased economic efficiency. A return to enforcement based upon the consumer choice standard could help to revitalize more aggressive enforcement. The article also discusses other ways - including the concern that a transaction might lead to a merger trend or wave, and a "sliding scale" approach to especially large transactions in highly concentrated industries - in which the Merger Guidelines and merger enforcement and decisions could become even more faithful to the Congressional goals underlying the incipiency doctrine.

Merger, Merger Incipency Doctrine, Antitrust

Abstract:
This short article applauds the European Commission for holding that Microsoft violated European competition laws, and admonishes the U.S. for criticizing the Europeans for protecting themselves from Microsoft's anticompetitive activity.

antitrust, competition, high tech, predation, Microsoft, software

Abstract:
This is an introduction to a symposium on Creating Competition for Transition Economies. This article provides an overview of the topic, and also briefly introduces the authors of the articles in the symposium; William Kovacic, Eleanor Fox, Spencer Weber Waller, Malcolm Coate, and Armando Rodriguez.

antitrust, competition, transition economies, economic development, competition law

Abstract:
What do exit polls and flu vaccine shortages have in common? Both involve situations where society has come to rely excessively on too few entities. When even one company makes a mistake society can suffer significantly. This short piece advocates that we abandon our almost laissez faire tolerence towards high concentration, and rely upon competition, rather than on monopoly or a small number of producers.

exit polls, flu vaccine, monopoly, competition, too big to fail

Abstract:
This is a submission to the FTC that discusses this agency's use of disgorgement as a remedy in Antitrust matters. It strongly supports the Commission's use of the disgorgement remedy, and gives reasons why the public interest would be enhanced if the agency used this remedy more often. This document was submitted on behalf of the American Antitrust Institute.

Antitrust, FTC, Federal Trade Commission, disgorgement, antitrust remedy, American Antirust Institute, optimal deterrence